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Wednesday, July 4, 2007

The Stupid Court of Canada - Health Services and Support v. B.C.

The Charter
guarantees a right to collective bargaining. Who knew? The phrase does
not occur in the Charter. The Supreme Court of Canada faced the issue
several times from 1987 and could not find it. As the Court says "the
Supreme Court's jurisprudence consistently and explicitly stated that
the ability to bargain collectively was not a Charter-protected
activity." The Court had to overrule four of its earlier decisions in
proclaiming, unanimously, in Health Services that collective bargaining is included in the freedom of association guaranteed under paragraph 2(d) of the Charter.

The
Court shows scant respect for its predecessors in the last 20 years in
concluding that their reasons for not finding a right to collective
bargaining in the Charter
"do not withstand principled scrutiny and should be rejected." It
accused them of adopting a "a decontextualized approach to defining the
scope of freedom of association". "Contextual" has in recent years
become the Court's favorite word, an abracadabra that transforms it into
a Humpty Dumpty court where everything means what it chooses it to
mean.

Formerly when courts have departed from precedents they
have striven, however disingenuously, to distinguish the precedents they
will not follow or have claimed that the world had changed making old
law inapplicable in new circumstances. This Court will not play such
games. The old court is simply condemned.

Whoever may be right
about the particular issue, the readiness of the Court to overrule
itself presents constitutional law in a slow flux. The Court in the next
20s may show no more respect for the McLachlin court than it shows for
the Dickson court. There is an implication that constitutional law is a
progressive science with new discoveries regularly made. But chiefly the
Court's reasons show conceit. It thinks it has got smarter. In fact it
is getting stupider.

Several pages of the Court's typically
prolix, pompous, inconsequent and vague reasons are devoted to a history
of collective bargaining. Workers banding together to deal with
employers were initially held to be combinations in restraint of trade
at common law and faced reactionary legislation as the industrial
revolution took off in the years following the French Revolution. This
law was gradually repealed and by the 1870s trade unions had received
legislative protection.

The Court's lengthy history comes down to
the facts that collective bargaining has been around for a long time
and is considered to be a very good thing. From this they leap to the
conclusion that it is a fundamental right. The only relevance of the
history is the exact opposite of what the Court makes of it. When the Charter was being drafted in 1981 collective bargaining was a very well known institution considered by many to be a right. If the Charter
was meant to guarantee it, it would have said so, in two words. But the
Court has long since abandoned any pretence that is is trying to find
the meaning of the Charter. It prefers itself as the source of meaning. It gives meaning to the Charter.

From
the history argument it follows that all good things provided or
legislated for by governments for a number of years are rights. Once
they become rights the Court takes them within its supreme authority.
Any changes to what governments do affect rights and must be approved by
the Court. If what governments provide fails to meet the Court's
exacting standards they will be ordered to shape up.

As it has
done before, the Court places great reliance on international
conventions signed by Canada. Negotiated in pleasant foreign climes by
irresponsible public servants with the public quite unaware what they
are supposedly being committed to, drawn in broad, grand language but
often descending to detail, notoriously entered into and even promoted
by regimes flagrantly breaching them, such conventions are an unsavoury
and suspect source of law. The implication that the meaning of the Charter
can be affected by conventions entered into before or after it was
adopted, with the public unaware, and subject to change is odd. And
there are enough of them and they say so much that the Court could
support whatever it might want to do with reference to to one or another
of them.

The Court may say that it is just using the conventions
as an aid to interpretation, not applying them. If the conventions
count collective bargaining as a freedom of association, then it must be
there in 2(d) of the Charter.
As the Court says rather clumsily the conventions "extend protection to
the functioning of trade unions in a manner suggesting that a right to
collective bargaining is part of freedom of association." As with the
argument from history, the argument from international conventions works
best the other way round. The fact that collective bargaining was
spelled out in the conventions raises the question why it was not
spelled out in the Charter. To which the answer is, that it was not intended.

The
Court's final argument is it grandest, vaguest and most ambitious.
Stating, reasonably enough, that "Human dignity, equality, liberty,
respect for the autonomy of the person and the enhancement of democracy
are among the values that underly the Charter", the Court reasons that
because "The right to bargain collectively with an employer enhances the
human dignity, liberty and autonomy [and equality] of workers" it must
be in the Charter
whether it is spelled out or not. The Court will find whatever it thinks
enhances "Human dignity, equality, liberty, respect for the autonomy of
the person and the enhancement of democracy" in the Charter whether the drafters put it there or not.

The
Court's strongest argument might seem to be that acting Minister of
Justice Robert Kaplan told a Joint Senate and House of Commons Committee
on January 22, 1981 that there was no need for a specific reference "to
freedom to organize and bargain collectively" because it was covered
already by freedom of association. But the Court has never felt bound by
assurances given before the Charter
was passed as to what it might mean. Jean Chrétien's specific assurance
to the same committee that it would not affect the law on abortion
counted for nothing in Morgantaler. In the claims made about the Charter support could be found for any interpretation.

As
the Court allows in its review of the history, collective bargaining in
the public sector is relatively new, coming into its own in the 60s.
Now it is where the action is for unions. It raises grave issues,
nowhere graver than in health care, that set it apart from the centuries
old engagement between capital and labour. The end of the legislation
found by the Court to infringe the right to collective bargaining was
the restructuring of health care in British Columbia, including
contracting out of services. The Court allow that this was, in its Oakes
jargon, a "pressing and substantial" objective. Public sector unions,
as much concerned with job security, classifications, contracting out,
transfers and assignments as with wages and salaries, powerfully
constrain the freedom of governments to decide what services they will
provide and how and where. In the private sector unions are constrained
by the same market forces that constrain their employers. They must be
ready to adapt or they will drive their employers into bankruptcy. In
the public sector there is no such constraint. Governments can only
achieve it by legislation. The Court is oblivious to this. Caught
between the unions and the Court public services risk becoming ossified.

At
the beginning of its reasons the Court refers in passing to the speed
with which the impugned legislation was passed and the absence of what
it calls "meaningful consultation" with the affected unions. In
considering at the conclusion of its reasons whether the infringement of
the right it had just invented could be justified under Section 1 of
the Charter, the Court
states soundly "Legislators are not bound to consult with affected
parties before passing legislation." and immediately effectively
retracts the statement by saying "it may be useful to consider, in the
course of the s. 1 justification analysis, whether the
government…engaged consultation with the affected parties". Having
seized for itself the power to review all future labour legislation to
determine whether it meets what standards it fancies in years to come,
the Court further takes on the supervision of all politics to determine
whether there has been "meaningful consultation" wherever it sees rights
affected, which is to say practically anywhere.

Unions were
naturally cheered by the Court's decision. It would not be an unworthy
suspicion to think that the Court, always eager for friends while
exposing itself to well founded criticism, was reaching out to them in
its decision. But unions would be wrong to count on the Court in all
their battles with governments. As each piece of legislation affecting
collective bargaining is brought before the courts, they will judge for
themselves whether they like it or not and will often let it stand, if
there has been enough "meaningful consultation" before the government
tells the unions to take a hike.

What the Court understands by collective bargaining, though it talks about it at length, remains obscure. In Dunmore, which paved the way for Health Services,
the Court held that agricultural workers had a right to form unions
while expressly stopping short of finding a right to collective
bargaining though it might follow from forming a union. In Health
Services it stops short of finding a right to strike. The health workers
affected by the impugned legislation in many cases were not permitted
to strike but could go to arbitration. The next step will be to find a
right to strike but allow its curtailment when the Court sees fit. The
next time a government tries to stop a transit strike commuters will
have to wait for the Court to say whether back to work legislation
passes the Oakes test before service is resumed.

All
the Court's arguments point to the conclusion that all good things are
rights. Why should this be so? Of course, once they are rights the come
into the Court's power. But can we have no confidence that our
democratic institutions will not provide good things without the Court's
supervision and direction? It was obvious that the Charter would give
the Court large new powers. But the Charter
was based on the assumption that there were specific rights and
freedoms, listed in it, that should set limits to the powers of
governments. It was not intended to make the Court a supergovernment.
That would be stupid.

In the first years after 1982 the Court
stumbled about trying to make sense of its new powers. But the
majorities showed understanding that they were limited by the language
of the Charter and by
its competence as an institution. In the 90s the Court grew
progressively stupider, its judgments ever more far reaching and
obscure.

At every opportunity for fifteen years or more the Court
has striven to find a right in the Charter that would extend its free
supervision of government action under Section 1. Once it finds a right
it will tell governments what they must not or must do. A natural
pursuit of power the trend is also profoundly stupid. The Court because
of its institutional nature and procedures, as much as from the human
frailty of its nine members and its irresponsibility, is incapable of
governing the country. Yet still it tries.